State v. Reece , 79 Wash. 2d 453 ( 1971 )

Rosellini, J.

The defendant was charged upon two counts of assault, one of attempted rape, and one of manslaughter. He entered a special plea of not guilty by reason of insanity. The jury found the defendant guilty of assault and manslaughter.

Upon his appeal, we are again asked to abandon the test of insanity commonly known as “M’Naghten’s rule” and to adopt the test proposed by the American Law Institute. In their agreed statement of the case, the parties have stipulated that there was sufficient evidence of insanity to support a verdict under the A.L.I. test as well as under the instructions given by the court.

The jury was instructed in accordance with the rule adhered to by this court in State v. White, 60 Wn.2d 551, 374 P.2d 942 (1962) and State v. Tyler, 77 Wn.2d 726, 466 P.2d 120 (1970). The test, the jury was instructed, is:

Is the mind of the accused so diseased or affected at the time of the commission of the act charged that he is unable to perceive the moral qualities of the act with which he is charged and is unable to tell right from wrong with reference to the particular acts charged.

The test advocated by the appellant¹ was embodied in this proposed instruction:

A person is not responsible for criminal conduct if at the time of such conduct as the result of mental disease or defect he lacks substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law.

Three reasons are advanced why this court should abandon the rule to which it has adhered consistently. The first is that a number of other courts, including most federal courts (but not including the United States Supreme Court), have adopted the A.L.I. test since 1962. This we do not consider to be a legal argument. If it is an argument based upon the assumption that reason and justice lie with the majority, it is equally if not more significant that the majority of state courts have continued to adhere to M’Naghten’s rule. If the theory is that because others have reexamined their approach to the defense of insanity, this court should do likewise, the answer is that we are amenable to persuasion and are ready to consider the appellant’s arguments.

One of these is that the courts and the psychiatrists should not have two different definitions of insanity. This proposition may have merit. However, the appellant has cited us to no evidence that the A.L.I. test embodies a consensus of the medical profession on the nature of insanity. Our examination of recent literature in the controversy over M’Naghten and other proposed tests of insanity convinces us that there is no agreement among psychiatrists concerning a definition of insanity. See concurring opinion of Burger, J., in Blocker v. United States, 288 F.2d 853, 859-62 (D.C. Cir. 1961), reprinted in part by the Joint Committee on Continuing Legal Education of the American Law Institute and the American Bar Association in Problems of Criminal Law and Its Administration, The Problem of Responsibility, No. 7, at 55 (1962). See also page 47 of that volume, where Dr. Manfred Guttmacher, a member of the A.L.I. Criminal Law Advisory Committee, is reported as having told his fellows that neither M’Naghten’s rule nor the A.L.I. test is meaningful to a psychiatrist.

One psychiatrist-lawyer has said that, under both these tests, as well as the Durham test, courts consistently ask psychiatrists to make unpsychiatric determinations. This writer said:

Psychiatrists can describe, diagnose, and treat mental illness; they cannot crawl into a defendant’s cranium and determine for the court information as subjective as whether the defendant knew or appreciated the difference between right and wrong or whether the defendant had a substantial capacity to conform.

J. Robitscher, J.D., M.D., Psychiatry and Changing Concepts of Criminal Responsibility, 31 Federal Probation 45, 47 (1967).

A professor of clinical psychology has offered a defense of M’Naghten, joining with a lawyer in publishing an article in 51 Minn. L. Rev. 789 (1967), entitled “The Virtues of M’Naghten.”²

As these authors point out, the purpose of the insanity test is to aid in determining the culpability of the defendant, that is, to obtain an answer to the question: did he have .the requisite intent to establish the mens rea? Its purpose is not to diagnose or analyze the defendant’s mental or emotional state for treatment purposes.

This court has not been furnished with any evidence that there is any general agreement among psychiatrists that there is a proper standard for determining the question of whether a person who has committed an act designated as criminal by the legislature should be held responsible for that act. In short, assuming that this court were disposed to adopt a psychiatric definition of criminal insanity, it' could not do so at this point, since it has not been shown what that definition is, if one in fact exists.

The final argument of the appellant is that the court should change the definition of criminal insanity in order to protect the public from compulsive acts of violence. The theory, as we understand it, is that under the A.L.I. test more persons will be found not guilty, and that a person found not guilty by reason of insanity will be detained in a state mental institution longer than he would be detained in a penal institution and will not be released until he is cured.

We have before us no data to ascertain whether this sociological argument is valid. We have no judicial knowledge that persons found “not guilty by reason of insanity,” who are in fact compulsive, are usually confined in state mental institutions and treated until they have recovered sufficiently from their “illness” to be no longer dangerous to be at large. We are not advised concerning the rate of recidivism.

Furthermore, we are not informed that persons found guilty of crimes and sent to penal institutions are denied psychiatric care if they are in fact mentally ill.

RCW 10.76.060 and .070 provide for the commitment and treatment of a person who is found to be criminally insane and for his confinement until a jury finds that he is safe to be at large. Thus we know that the proper statutory authorization exists. But a similar authorization is found in RCW 72.08.110 for the commitment of persons in penal institutions who are found to be mentally ill. If we can assume from the mere existence of statutory direction or authorization that proper treatment is accorded and rehabilitation occurs, we must assume that an insane person who has committed a crime receives this care and becomes rehabilitated, whether or not he is sent to a penal institution. We may have some doubts as to whether adequate treatment is afforded, but, in the absence of evidence to the contrary, the court must presume that the statutory mandate is followed.

Whether a person found guilty of having done a criminal act is to be punished or treated is a question for legislative consideration. It would appear to the court that the jury’s determination on the question of the defendant’s mental or emotional health should not constitute the final diagnosis, if the defendant is in fact found guilty and committed to a penal institution, or, indeed, if he is found not guilty by reason of insanity. The jury’s function is to determine whether the defendant committed the crime. The question of whether the defendant needs psychiatric treatment is relevant only insofar as it throws light upon that question. What we mean to say is that rehabilitation is a vital concern of the state; it is not a concern of the jury while it ponders the sole question of guilt or innocence.

We are not prepared at this time to adopt a broader rule for establishing the defense of insanity, upon the strength of the arguments made in this case and the data presented.

It should be observed that the reasons which are usually advanced for abandoning the rule of M’Naghten involve consideration of factual matters which can best be presented to the legislature where there is an opportunity for other interested parties, including psychiatrists, psychologists, penologists, administrators of institutions, and sociologists, to present their views. The court hears only lawyers, and in a matter obviously involving so many considerations which are outside the lawyer’s repertoire, it is reluctant to adopt a theory which is not shown to have substantial validity.³

We cannot lose sight of the fact that the entire criminal law proceeds upon the assumption that a rational man can control his acts and can be deterred by fear of punishment. If medical science discovers that this is a false assumption, that there is no “free will,” then what is called for is an entirely new legislative approach to the problems of antisocial conduct.

We are particularly reluctant to adopt a rule permitting a defense of compulsive conduct when the legislature has given some indication that it does not consider this a proper defense. In RCW 71.06, the legislative body has provided for the treatment of sexual psychopaths and psychopathic delinquents but has not seen fit to relieve them of responsibility for their criminal acts.

The judgment is affirmed.

Hamilton, C.J., Hale, Neill, Stafford, and Wright, JJ., concur.

Hunter, J. (dissenting) — I dissent.

I would abandon the “M’Naghten rule” and follow the test for insanity embodied in the rule of the American Law Institute or a test comparable, for the reasons stated in my dissent in State v. White, 60 Wn.2d 551, 374 P.2d 942 (1962). The jury should have been instructed on the American Law Institute test for insanity as stated in the defendant’s proposed instruction. The judgment of guilty entered upon the jury verdict should be set aside and a new trial granted to the defendant.

1 Based upon § 4.01 of the Model Penal Code (Proposed Final Draft No. 1, April 1961).

2 Joseph M. Livermore, Assistant Professor of Law, University of Minnesota and Paul E. Meehl, Professor of Clinical Psychology, University of Minnesota.

3 Not all critics of M’Naghten. want to see the definition of insanity expanded to embrace other manifestations of mental illness. For example, see N. Morris, Psychiatry and the Dangerous Criminal, 41 S. Calif. L. Rev. 514 (1968), for a very learned critique of the insanity defense. It is the conclusion of Dr. Morris after many years of thoughtful study that the “defense” of insanity should be abolished and that evidence of mental or emotional illness should simply be admissible as bearing on the question of mens rea or “guilty intent.” In an appendix, he cites similar views of other students of this problem.